Tejada: Environmental commission's program ineffective

Texas law requires the Texas Commission on Environmental Quality to consider a facility’s past compliance when making decisions regarding permits or inspections. TCEQ has, for more than a decade, attempted to use an incentive structure — the Compliance History program — to reward good behavior at the thousands of facilities it regulates around the state, from your local gas station to the refinery that produces that gas. A facility’s Compliance History score affects every bit of its business with TCEQ.

There has, however, always been one big problem with the Compliance History program: It doesn’t work.

With new rules proposed by TCEQ, insiders have estimated thousands of previously categorized “poor” performers will be bumped up to “average” without removing an ounce of pollution from our air and water.

These new rules were discussed at a March 6 public hearing at TCEQ.

Texas had an excellent opportunity to fix the Compliance History program during the recent Sunset Commission review of TCEQ. Unfortunately, most of the statutory changes to the program have only further cemented its faults in place and given an even bigger free pass to some of the state’s worst performers.

One, and possibly the only, major improvement was the Compliance History scores are now separated by industry type. Before, TCEQ put every facility into one big hopper, meaning your local gas station was being compared to a big refinery.

While that change was a step in the right direction, it will fall far short of the reforms needed to actually deliver the intent of the Compliance History program — rewarding good actors for their good behavior and offering incentives to poor performers to clean up their acts.

The problem with the existing structure is basically every facility comes out average. You don’t need to be a policy genius to know incentives don’t work if everyone stays in the middle.

This current problem is made worse because the Texas Legislature saw fit to drastically limit the compliance information state staff can use to generate Compliance History scores.

The law now bars TCEQ from looking at more than one year’s worth of notices of violation, one of the most common types of compliance information.

This is a near debilitating limitation.

However, it could still be possible for the agency to craft a program that effectively separates the good from the average from the poor performers.

Unfortunately, in its rulemaking, TCEQ has introduced even more limitations that will only further serve to keep every facility average.

These changes include lowering the score by which a performer falls into the poor category, giving the TCEQ executive director extraordinary authority to change a facility’s classification and handing out bonus points for ill- defined and unregulated voluntary measures that a facility can implement.

If the Compliance History program reforms go forward as written, nothing will change, which is a shame.

Compliance History is a good idea that has never been executed effectively.

We are missing out on two major opportunities by continuing to pretend all facilities in this state are average.

First, we miss a chance to implement the type of regulation a lot of people in our state prefer.

Second, and most importantly, we miss a huge opportunity to try to clean up the air and water around our state in a business-friendly manner.

At a time when the challenge of grappling with an increasing array of environmental and health threats to our state and population gets harder every day, we cannot afford to let such opportunities pass us by.

We urge TCEQ to reconsider its Compliance History rules and deliver a program that works to the people of Texas.

Matthew Tejada is executive director of Air Alliance Houston a nonprofit organization.